Be an Effective Expert Witness! Be a “Teacher” of Your Expertise to the Jury!
Most modern trials require the support of expert witnesses from one field of expertise or another. Virtually all personal injury cases require medical experts. Most product liability cases require engineers or product safety experts. Many consumer fraud cases require expert witnesses for assessment of damages and other issues. Over the past three decades, the use of expert witnesses has far expanded into virtually limitless state.
Ineffective Expert vs. Effective Expert
Being an expert witness can be done by just about anyone with a degree. It is the same as a lawyer; the moment a lawyer graduates law school and passes the bar, he or she is a lawyer. Does not mean, at that point, the lawyer is an “effective” one or “seasoned” in his or craft? Undoubtedly not!
The pursuit of a professional — any professional — is to be effective and competent. The same is true of a court room expert witness. An expert’s most important functions is to review the facts of a case; provide a written report; likely testify in deposition; then (although less likely) be available to testify in a court of law in support of the things he or she has written in the report and has testified in deposition.
The role of a good, effective expert is similar to a medical researcher at the frontier of development. When a new drug is created, when a new scientific development is achieved, the researcher must articulate his or her study results, assumptions, and variables and unknown issues to the public and thereby enable his colleagues across the globe to review, analyze and critique upon it. The same is true of a court room expert. The expert “publishes” his or her views in a report, supported by facts, data, and assumptions, then provides an opinion as to the case assignment within a “reasonable degree of professional certitude” — not exactitude. The critique come in the form of cross-examination from the adverse lawyers who may have retained their own experts with differing views.
Once an expert concludes a certain reality, the expert must defend it through thick and thin. If an expert mistakenly says 3 + 3 = 5, the expert should adjust the conclusion or correct it. But if the expert determines that a certain amount of red mixed with a certain amount of white paint resulted in this bucket being “stark orange,” a reality that is not amenable to mathematical precision, the expert must be committed to his or her reality sufficiently firmly to defend it until “doomsday.”
This is where many experts make a mistake because they are cautious; doubtful; lack of experience; whatever. If the expert to opined that the bucket contained “stark orange” paint is challenged and prodded by opposing counsel and somehow agrees, “well, it is faint orange,” the expert may have done significant damage to the underlying viewpoint (“stark orange”) to a point that it would have been best to have said the bucket contained “faint orange” to begin with.
Defending the Expert’s Viewpoint and Conclusion Through Thick and Thin Direct Testimony
Direct testimony — for all witnesses — is called and developed by the lawyer and witnesses who are essentially on the same side of the dispute. If a plaintiff has retained a mechanical engineer, Jane Smith, she would be called “plaintiff’s engineering expert witness.” Jane Smith’s direct testimony would follow the same principle for all direct testimony: explain the subject matter in the context of the dispute. If the engineering issue is vehicle safety, such as defective airbag which resulted in death or injury to an occupant, the lawyer should develop questions that will enable the expert to tell a story of the lack of safety and the expert should be equally prepared to tell that story.
The expert would say, for example, that Takata airbags are known to have been manufactured with serious defects such as this, that, and the other thing; that these are the subject of the largest automotive recalls in history; that the injuries suffered in this case are consistent with various other injuries suffered by others in Takata airbag accidents. The key is that the expert must direct the testimony to the lay jury of six or eight individuals who likely do not have the kind of training or background that the expert possesses (which is why the expert’s role may be “helpful”).
Experts are different from fact witnesses in one critical respect. Experts may rely upon third-parties’ facts or data and provide conclusions based upon those borrowed facts, and even testimony. A simple example of this is a court room expert, a pathologist, testifying about the manner of death of an individual. The pathologist may rely upon the examination records of the county medical examiner, the decedent’s medical history from his own doctors, and interviews taken by the police at the scene of the incident and render conclusions in the court room that the decedent died of multiple stabbings and not from old age or natural causes or drugs in his system.
Legal Basis for Expert Testimony in the Courts
The role of expert witnesses is guided by the Rules of Evidence applicable in a particular jurisdiction. Every state and the federal courts across the country use the evidentiary rules that are applicable in each jurisdiction. Under the Federal Rule of Evidence, there are two types of “opinion testimony” that may be permitted as evidence.
FRE 701 states:
Rule 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
FRE 702 states, in turn:
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
FRE 703 states:
Rule 703. Bases of an Expert
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
The juxtaposition of FRE 701 and FRE 702, at its core, is that 701 permits any fact witness to give an opinion on non-technical, non-professional, non-scientific matter, such as the speed of a car driven by someone in the case. On the other hand, FRE 702, which specifically applies to “testimony by expert witnesses,” requires that the expert’s opinion “will help the trier of fact”; the testimony is based upon sufficient factual support; the expert has applied reliable principles and methods; and the expert has applied the principles to the facts of the case rather than merely in the abstract.
One of the key requirements of an expert witness is that the expert is qualified by education, training or experience — or all of these — to opine about an issue in the case. If an issue in the case is permanency of injuries after a vehicle collision, or slip and fall, or the safety of air bags, the expert is expected to be able to discuss authoritatively on the topic, regardless of whether or not the expert has previously given any such views. Obviously, the more frequency of the expert’s engagement in similar cases will seem like the expert is more experienced, but sometimes experience alone is not helpful for a particular case.
Although our purpose is not to exhaustively review all the state laws of evidence governing expert testimony, they are, with certain variations, generally similar to the Federal Rule 702 principles.
Building an Expert’s Case
Building the expert’s case before the jury and judge begins in earnest with the very first discussion with the lawyer, when the case is being assigned and the expert has agreed to be retained. During the screening discussion, the expert should ask probing questions about the nature of the case, the persons involved, and what the retaining attorney’s theory of liability and theory as to the expert’s expected role may be. During the intake discussion, experts will be able to gauge whether there is an appropriate synergy between the lawyer and the expert.
An expert is allowed to go beyond facts reviewed in the case to offer opinions on ultimate issues in the case. Since the role of an expert witness is to “help the fact finder,” i.e., the jury, in understanding the evidence, the expert’s role is like a teacher explaining a principle then applying the principle to concrete facts.
An important distinction is that an expert may base his or her opinion testimony on facts that are perceived from a variety of sources including, importantly, hearsay evidence. In most cases, an expert would review the pleadings and discovery materials developed in the case; any fact materials such as medical treatment records; accident history; mechanical safety records; whatever apply to the case. Experts would likely attend or review deposition transcripts of witnesses.
When the expert testifies in court, he or she need not testify what facts were specifically considered unless the court requires it. If the expert is requested to explain the underlying facts or assumptions that the expert has used to derive his or her conclusions, then the expert should provide those facts. See F.R.E. 705.
In Court Direct and Cross Examination of an Expert Witness
The O.J. Simpson trial not only made famous defense lawyers even more famous, but has been called the “trial of the century.” During that trial, a nationally famous forensic expert, Henry Lee, was retained by the defense lawyers to discuss blood trace evidence in and about the murder scene. Dr. Henry Lee’s testimony was thought to be one of the critical pieces of the jigsaw puzzles that led to “reasonable doubt.” Attorney Barry Scheck, a professor and practicing attorney, proceeded with the direct and one of the lead prosecutors cross-examined like this:
People v. Orenthal James Simpson
SCHECK: Dr. Lee, could you tell us what present position you hold?
LEE: Currently, I’m the chief criminalist for state of Connecticut. Also, I’m the laboratory director for Connecticut State Police forensic laboratory. However, today, I come here as a – act as an independent consultant, nothing to do with my official capacity.
SCHECK: Now, Dr. Lee, in terms of the side that you’re usually on in criminal cases in terms of percentages, what percentage of the time are you called by the Prosecution and what percentage of the time are you called by the Defense?
LEE: Uh, approximately 95 percent is for the Prosecution, less than five percent for the Defense.
SCHECK: All right. In terms of the different areas that you have testified in as an expert for the Prosecution and Defense, just to get through it briefly, does that include hair examination?
SCHECK: Trace evidence?
SCHECK: Crime scene reconstruction?
SCHECK: And something that’s called blood spatter or blood splatter interpretation?
LEE: It’s blood pattern interpretation.
SCHECK: Okay. Doctor, I would like to turn for a second to your writings. How many books or monographs or chapters in textbooks have you written?
LEE: Including books or booklet, monographs or chapter, more than 20, more than 20 now.
SCHECK: Are some of these books used as textbooks in forensic science?
MR. SCHECK: Now, let’s talk briefly about the professional associations where you’re a member. What professional associations are you a member of and that you’re active in?
DR. LEE: Approximately 20 some different professional organization. Most are dealing with forensic science. To name a few, Academy of–American Academy of Forensic Science, England Forensic Society, England Fingerprint Society, International Association of Identification, International Bloodstain Pattern Analysis Association, International Homicide Detectives Investigators’ Association and Northeastern Forensic Scientist Association, of course American Crime Laboratory Directors Association and some other organization.
SCHECK: Now, Dr. Lee, how is it that you got involved in this case?
LEE: This case, in June 14, I receive a phone call from attorney Shapiro, Bob Shapiro, asking me to assist in this case.
SCHECK: Now, what were you asked to do in terms of this case for the Defense? What tasks were you asked to perform? What areas?
LEE: Uh, basically involving review some physical evidence and exam, study the crime scene and crime scene pictures, photographs, try to find the scientific fact, what involved in this case. So my role is rather limited, not really involving other aspect of investigation. In addition, when the time I was called in, the crime scene already almost nonexist. So my involvement just so-called a limit review of the crime scene photographs and crime scene inspection. Physical evidence, that’s my strength. I exam quite a few pieces physical evidence.
SCHECK: There is a discipline of analysis known as bloodstain spatter or splatter interpretation?
LEE: Bloodstain pattern analysis, yes.
SCHECK: All right. And you were making reference in your testimony so far to certain kind of bloodstain patterns?
LEE: Yes, sir.
SCHECK: Your Honor, at this time I would ask permission to, with a bottle of red ink and paper, have Dr. Lee demonstrate different kind of bloodstain patterns.
- SCHECK: As a predicate for explaining bloodstain patterns, could you explain for us briefing something about the circulatory system as it relates to how blood comes out of the body?
- LEE: Yes, sir. In this closed circulation system carry the oxygen nutrient through the body and that is why we can function. Once this system interrupt, the blood will come up. Depends which part of the body. If an artery, the blood will gush out, so-called arterial spurting, arterial gushing. If a vein was cut, the blood will rush out. If just a capillary cut, the blood dripping out. Once it has come out of our body, we cannot take back any more, we cannot control any more. The environment and the physics takes over. It is no longer–can be controlled by an individual. Once the blood come out, would deposit to a surface. The surface usually is the lowest surface, whatever lowest surface. For example, here, that is–if I dripping the blood or ink onto this surface, that is the lowest surface. If I drip here, (Indicating), the carpet going to be lowest surface. It stop on the surface according to the physics, the gravity.
- SCHECK: Could you demonstrate for the jury, for example, you mentioned a drop, what is known as a low velocity drop?
- LEE: Yes. If the blood come out without any force, just dripping, going to form certain patterns. This pattern, (Indicating), generally we consider a low velocity blood drop.
- SCHECK: All right. The record should reflect that Dr. Lee has taken a bottle of–out of a bottle of red ink a dropper.
THE COURT: Eyedropper.
- SCHECK: I’m sorry, an eyedropper, and dropped it directly down onto a piece of paper.
SCHECK: Now, on this low velocity drop, the way you did it, it was vertical?
LEE: It is directly perpendicular to the surface, ninety-degree drop.
SCHECK: Now, if one were to measure the diameter of those drops, could this be correlated with the source of it to the target?
LEE: In general we can do an estimation. We have to know the substrata. Is this paper, carpet, pavement or wood? Each substrata surface will have different effect. You cannot use the paper to compare a carpet or use the carpet to compare the pavement; therefore, you have to know the drop size, how big a drop, and have to know the substrata. Sometime we can make some correlation. We cannot make, say, an exact determination how high.
SCHECK: But can one make a reasonable approximation, in certain instances, by measuring the diameter of a vertical drop such as this with respect to where the source was?
LEE: If we know every parameters, then we can make a reasonable interpretation.
SCHECK: Is it therefore important, when documenting, preserving evidence at a crime scene, to make an effort to document the size of drops?
LEE: Yes. We generally conduct such documentation.
SCHECK: And the photographs taken in this case of the bloodstain evidence at the Bundy and Rockingham scenes, did they contain rulers in them so that such measurements could be made?
LEE: I did not have opportunity to see every photograph. I cannot tell you. The photograph what I examined I did not see rulers.
SCHECK: So would it be fair to say that the impact angle can be determined to some extent by the width and length of the bloodstain pattern?
SCHECK: And is that something that ought to be done when properly processing a crime scene?
LEE: I usually–if a blood pattern become crucial, we document that.
THE COURT: No. Have you ever been to a Gallagher show?
SCHECK: I have. Doesn’t he use more props?
SCHECK: Dr. Lee, I call your attention now to the board that we’ve marked 1341 entitled “Bloodstain from closed-in area of Bundy.” With the court’s permission may Dr. Lee–
THE COURT: Yes, he may.
SCHECK: –get off the witness stand and with the aid of a pointer or whatever else you want to use, Dr. Lee.
SCHECK: Now, Dr. Lee, what does the center picture in this board depict?
LEE: The center picture second row second line–second column, second row, this depicts an overall view of a corner of a fenced in area at the Bundy scene.
SCHECK: And Dr. Lee, are there recognizable blood spatter patterns that are highlighted in the peripheral pictures on this board?
SCHECK: Now, whose pictures are these?
LEE: Those are the pictures supplied to me by attorney Shapiro.
SCHECK: So these are from, to the best of your knowledge, the Prosecution?
LEE: Yes, sir.
SCHECK: And with respect to these bloodstain patterns, there are no rulers in this–these pictures so that we can measure any of these deposits?
LEE: I did not see any.
SCHECK: I would like to now turn to a discussion of the socks, and I’d ask that this board be marked Defendant’s next in order.
SCHECK: This first board marked 1352 entitled, “History of socks, item 13, June 13th, 1994 at Rockingham,” briefly, Dr. Lee, what is this?
LEE: This board consists three picture. This three picture was supplied to me by attorney Shapiro.
THE COURT: Next question.
SCHECK: All right. Picture no. 1 is a–represents what in terms of the bedroom?
LEE: Depicts an overall view, shows this corner of the bedroom and a rug on the carpet, the bed and appear to be–in the center of this picture appear to be pair of socks (Indicating).
SCHECK: Direct your attention to the picture on the upper right-hand corner.
LEE: This picture is taken appear to be a different point of time. We see some changes in the picture. However, this pair of socks appear to be in the middle of this rug (Indicating).
SCHECK: May I call your attention to close-up of two socks?
SCHECK: And what does that appear to be in relation to the picture above it?
LEE: This appear to be a close-up showing this pair of same socks.
SCHECK: Uh-huh. Now, is there anything about the way those socks are lying on the carpet that is of interest in terms of subsequent analysis?
SCHECK: What is it?
LEE: This two socks is clearly in two different location, not on top each other. This two socks both have a similarity. The top appear to be folding downward. These two socks, both side, the tip, the toe area cannot be seen whether or not due to this photograph, two-dimensional representation or in reality was tucked in, which I don’t know. One sock appear to be crunched in a three-dimensional setting. The other one also, it’s not flat. It’s also crunched in certain fashion. These two socks, I can not determine just by looking at them inside out or outside in (Indicating).
SCHECK: In terms of the proper practices for collection of these socks, what should be done?
LEE: If I do it, I can not say about any other people. These two socks–
GOLDBERG: Not responsive.
THE COURT: Overruled.
LEE: These two socks should be put in two separate bags. However, before I even pick it up, should noted the condition, dry, wet, moist or damp. In addition, should definite indicates inside out or outside in, the toe stuck inside or not or exposed, the top, whether or not in fact fall down works or not. A physical description and any obvious trace material or stain should be noted.
SCHECK: And did you examine one sock and then the other sock?
LEE: Yes. I exam one sock at a time.
SCHECK: And between the examination of one sock to the other sock, did you change gloves?
LEE: Yes, I did.
SCHECK: Any question about that in your mind?
LEE: No question about it.
SCHECK: Now, can you tell us what you were able to observe–I think we’re–is there anything else of note on this board?
SCHECK: What is that?
LEE: I notice that both socks in one bag, in one envelope. I made a comment, I said why those two socks in one envelope.
SCHECK: And what is the significance of putting both socks in one envelope for–in terms of forensic procedure?
LEE: Start that initial moment, you pick up the socks, put in one envelope, you already contaminate both socks. You have a cross-contamination. It’s no longer its virgin state.
SCHECK: Is there any significance in terms of this examination that you are not wearing a lab coat or a hair net?
LEE: I wasn’t provide with a lab coat nor a hair net. After I look, these both socks already put in one envelope. Doesn’t matter what I wear, space suit, body armor. Still contaminated.
SCHECK: All right. The board contains the phrase “Wet blood transfers” in relation to this picture. Could you please explain that?
LEE: When I exam this stain carefully, it’s a contact smear made of blood. This blood has to be in wet stage to get transfer. Once it dry, you cannot transfer anymore. So that’s why I refer a close-up view of a wet blood transfer.
SCHECK: And let me see if I understand this. You’re saying that what has to be wet in order to cause this kind of transfer stain?
LEE: Yes, sir.
SCHECK: The object that is making–
LEE: The object, the surface of items on either a glove or any object have some wet blood touch this brown paper bag cause this transfer with the motion.
SCHECK: And what is the photograph on the upper right-hand corner of this board entitled, “Bloodstains inside paper bag, item 78?” What does that represent?
LEE: The paper bag when I look at the inside, I see wet transfer inside of the bag. The mechanism of this transfer remains the same. Has to be a wet surface, wet object with some wet blood–I’m sorry–a surface object with some wet blood contact this brown paper bag cause such transfer.
SCHECK: And what is the picture, the lower right hand that says close-up wet blood transfers?
LEE: The close-up shows some of the blood has soaked through other side to the exterior surface.
SCHECK: All right. Now, is it a good procedure to put an object such as a boot that is still wet with blood inside a paper bag?
LEE: I cannot say what LAPD procedure. I did not review it. I’ve not come here to criticize anybody. My own procedure, if I collect, I don’t put an object wet.
SCHECK: And why wouldn’t you put a wet object into such a paper bag?
LEE: Because a transfer, you change the pattern. If an object have two or three different type of blood grouping, because this transfer, now you may resolve some false reading.
SCHECK: Is that–could create mixtures?
SCHECK: Where there weren’t originally mixtures?
SCHECK: Is that what’s sometimes known as cross-contamination?
CROSS-EXAMINATION BY PROSECUTOR, MR. GOLDBERG
GOLDBERG: Okay. Now, Dr. Lee, I wanted to just mention very briefly or ask you very briefly about one of the matters that you just alluded to a few moments ago.
LEE: Yes, sir.
GOLDBERG: Regarding identification of human remains in cases here in the continental United States.
GOLDBERG: Your most famous such case where you were personally involved at the crime scene, not at the time of the crime, but afterwards.
LEE: Thank you very much.
GOLDBERG: Yes.–was the People versus Crafts case; is that correct?
LEE: Yes, sir.
GOLDBERG: Okay. And was that a case, sir, where the victim in that case, Helen Crafts, was killed by her husband and she was–he disposed of her by putting her body through a wood chipper machine?
GOLDBERG: And in that particular case is it a fair summary of what happened that the biological evidence was spread over a very significant amount of territory, about 2500 square feet, in the snow by a river as a result of the body having gone through the wood clipper machine?
LEE: The majority this and probably wound up in the river. Only small fragment were found scattered around the river bank.
GOLDBERG: Right. And just so it is clear, what was done in this case is large amounts of snow were put in buckets and then taken into tents and melted and the biological evidence would tend to fall or sink to the bottom of the bucket and all the debris would tend to rise to the top and you just throw the debris out and take the biological evidence out in the bottom?
LEE: Not exactly. Any recognizable material, for example, we found a fingernail, you can recognize, you don’t have to throw in a bucket. You just taken it out. If it is bone chips, we can recognize, or a tooth. We have a team of scientists, team of investigator work together since we can see and recognizable right away, you remove it. For example, I can see a scissor, I collect a scissor. I don’t have to throw the scissor in the bucket. Things we cannot visually recognize, we use the second procedure.
GOLDBERG: And that included some of the biological evidence in the case?
GOLDBERG: And Dr. Lee, when that occurred, when the items would fall to the bottom of the bucket, various different biological samples could get mixed together or were mixed together; is that correct?
LEE: Yes, yes.
GOLDBERG: And it also mixed together human biological samples with others that were out there, like deer bones and the like; is that correct?
LEE: Yes, correct.
GOLDBERG: Yes. And despite that, sir, it was proper and you did decide to attempt DNA technology on this evidence; is that correct?
LEE: That’s correct.
GOLDBERG: All right. But this case was a little while ago, as I recall, it was in the mid-eighties?
GOLDBERG: So with the state of the technology at that time, you were not actually able to do DNA, true?
LEE: No. We did some DNA work.
GOLDBERG: Oh, you did?
LEE: We did some X, Y, determine male, female.
MR. GOLDBERG: Okay. You were also able to do–when I say “You” I’m also including your laboratory people–
GOLDBERG: Okay. And you were able to get results that identified the human remains in that case even though all the biological evidence was mixed together at the time that it was collected?
LEE: Yes, sir.
GOLDBERG: Do you agree, sir, that one of the practical realities that criminalists face who are working for law enforcement, is budgetary problems and monetary shortfalls?
GOLDBERG: So would you agree, sir, that generally speaking, forensic resources are scarce in the sense that we can’t do all the testing and all the study in every case that we would like to do?
LEE: That is absolute correct. Of course if you have the support of the leadership, for example, I have a good boss, my commissioner very supportive to forensic science, so we try to do what supposed to do. Of course impossible to do every possible test in this earth for a certain case.
GOLDBERG: Okay. All right. Have you read Mr. MacDonnell’s article on the “Absence of evidence is not evidence of absence”?
LEE: (No audible response.)
GOLDBERG: “Absence of evidence is not evidence of absence”?
LEE: I’m a Chinese. Take me a while to think about this double-talk. Absence–
GOLDBERG: And do you agree generally with the findings of MacDonnell in this particular article?
LEE: In general, yes, but the specific example he give maybe not totally cover the whole situation.
GOLDBERG: Okay. But in general do you agree with the proposition that we really can’t infer that someone cannot participate in a crime involving a bloody event simply because they don’t have blood on them, on their clothing or on their person?
LEE: Again, as I indicate before, depend on situation. One example said beat up a rabbit. Rabbit, human two different scene. You beat up a rabbit, did not get blood spatter on your clothing. Doesn’t mean you beat up a human did not get blood on your body, and I guess depends on situation. If you standing a distance, firing a shot, gunshot, thirty feet away, kill somebody, I don’t expect to find blood spatter on somebody’s clothing. That is correct. However, if you put the gun next to somebody’s head, fire a shot, nothing, no clothing, block the back spatter, I expect to find some blood spatter, so it varies. I cannot in certain senses, correct. In other situation maybe not.
GOLDBERG: Okay. Isn’t there a lot of forensic science literature out there that generally cautions the forensic scientists who are involved in blood spatter that you can’t really say that someone didn’t participate in a crime just because they are not covered in blood even if it is something like a stabbing?
LEE: Yes, sir.
GOLDBERG: All right. Now, sir, have you had some cases yourself in your own career as a forensic scientist where the crime scene was extremely bloody?
LEE: Yes, sir.
GOLDBERG: Yet–yet the suspect did not have a lot of blood on his clothing?
LEE: Off my head I don’t really remember every crime scene I went. In general more blood, I should expect to find some blood on the suspect. Again, depends on situation. You have a shooting at a distance, yes, the victim lying there, have a lot of blood. Suspect with a long gun, you don’t expect to find that. Those are correct. If a closed compact situation, maybe different.
REDIRECT EXAMINATION BY ATTORNEY BARRY SCHECK
SCHECK: Dr. Lee, finally, you were asked some questions about the closed-in area of the Bundy crime scene, the absence of evidence and bloodstain patterns on cross-examination. Do you recall those?
SCHECK: Well, let me ask you this, Dr. Lee. In a closed environment, closed-in environment with hand-to-hand combat, with multiple stab wounds, with blood stains in different places indicating multiple contact smears with vertical droplets in the areas of the different multiple contact smears, with other blood spatter cast off in different directions, with the key in one area, beeper in another area, in that kind of struggle, do you have an opinion as to whether or not an assailant or assailants would be covered with blood from the struggle?
GOLDBERG: Misstates the testimony, calls for speculation.
THE COURT: Overruled.
GOLDBERG: Incomplete hypothetical.
THE COURT: Overruled.
SCHECK: What is that opinion?
LEE: In theory, should have some blood.
RE-CROSS-EXAMINATION BY PROSECUTOR MR. GOLDBERG
GOLDBERG: All right. Now, let’s get to one of your comments about in theory, there should be some blood in response to Mr. Scheck’s line of questioning.
GOLDBERG: Remember that?
GOLDBERG: Okay. Would that also depend upon where the suspect was standing?
LEE: Uh, depends on whether or not a combat situation, hand-to-hand combat situation. You have distance, of course, the chances for getting blood on unless some material spurt or certain force, internal force or external force. You have injury on the hand, have a cast off, have other motion, that going to cast to greater distance. If in close contact, if large amount of blood come out, you going to have more blood.
GOLDBERG: Let me ask you this, doctor. Do you recall one of your fairly well known cases back in 1984 by the name of People versus Hoeplinger where a husband beat his wife to death by hitting her numerous times in the head with a brick, drug her body out to a fish pond, drug her back into the house and then claimed that someone else broke into the home and committed the murder?
LEE: 80 percent correct. Not drag to the fish pond. Never got to the fish pond.
GOLDBERG: Only part way?
LEE: Drug, carry to a location end of the driveway and drag into a pack of Sandril (Sic) to–near the neighbor’s house and carry the body, half drug, half carry, put back in family room on the sofa.
GOLDBERG: And isn’t it true that that kind of an assault with the brick on the head by beating numerous times produces enormous amount of blood and it did so in the Hoeplinger case?
GOLDBERG: And isn’t it true that on the suspect’s jeans, there were only two drops of blood?
LEE: Well, we assume that’s the original jean. I don’t have any record, but I do know he wash his T-shirt. I found a T-shirt washed in the pond.
LEE: But the blue jean, whether or not that’s the original blue jean, I have no or information, record of it.
GOLDBERG: Well, you testified in court and those blue jeans were presented to a jury as being worn by the suspects–suspect, the husband at the time of the murder; is that correct?
LEE: I–that’s long time ago. If you say correct, probably correct. I don’t recall. There’s thousands cases I been working on.
GOLDBERG: Does that seem to be consistent with your memory?
LEE: Sure. Sure.
GOLDBERG: And only two blood drops?
LEE: I don’t remember. If you say two drops, it’s two drop.
GOLDBERG: And the scene was covered in blood, correct?
GOLDBERG: Sir, if a person were to wrap their hand around someone’s throat and slit that person’s throat–
LEE: Yes, sir.
GOLDBERG: –and the blood spurted forward, would you expect the assailant to be covered in blood?
LEE: Probably not.